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<xTITLE>What is Negotiation, Anyway?</xTITLE>

What is Negotiation, Anyway?

by John Lande
January 2017


John Lande

I know, I know.  This sounds like another one of my dumb questions.

Actually, it is surprisingly difficult.  Consider the following activities.

Kids trading baseball cards, parents promising children ice cream if they finish eating their veggies, large groups of friends ordering dinner at a Chinese restaurant, families planning a vacation, tourists haggling at a Middle Eastern bazaar, claims adjusters processing a constant stream of routine insurance claims, TV stars cashing in on their celebrity in employment contracts, customers paying prostitutes for services or drug dealers for products, union and management officials working out collective bargaining agreements, professors wheedling perks from their deans, executives hashing out a corporate strategy, tycoons making huge real estate deals, community leaders crafting environmental compromises, public defenders coaxing their clients to accept plea bargains, lawyers and mediators settling contentious lawsuits, governments back-channeling with insurgents, kidnappers, or terrorists, and diplomats arranging peace treaties.

Are all of these things negotiation?  For those that are negotiation, what do they all have in common?  What distinguishes them from other interactions?

Can one truly negotiate with a mugger who is pointing a gun at your face?  Or, even more death-defying, what about dealing with your dean?

These are just a few of the topics discussed in an article from the Tower of Babel symposium last fall.  As Andrea Schneider, Noam Ebner, and David Matz drove back to the airport from the symposium, they discussed questions like these questions and many more.

That conversation became Act I in The Definition of Negotiation: A Play in Three Acts.  Then I metaphorically joined the ride in Act II, followed by forty years in the wilderness in Act III.  Actually, Act III doesn’t take quite that long, we weren’t in the desert, and we don’t actually make it to the promised land.  We did move forward, but not all in quite the same direction.

In my completely unbiased opinion, this short article is extremely thought-provoking and a hoot to read for anyone interested in dispute resolution.

This is a particularly useful article for the first class or two of a negotiation course, guaranteed to stimulate a spirited discussion.  If it doesn’t work to add this to your syllabus for the current semester as a required reading, you might recommend it and/or discuss in class it yourself.

Since it still is in draft, if you have any comments or suggestions, please write a comment below and/or get in touch with any of the authors.

I will post drafts of the other great articles in this symposium, but I wanted to pass this along now in case you want to use it in your course this semester.



John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is

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